Huether v. Havelock Equity Exchange, a Corp.
| Citation | 204 N.W. 828,52 N.D. 786 |
| Decision Date | 13 June 1925 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Hettinger County, North Dakota Lembke, J.
Modified and affirmed with directions.
Affirmed.
Sullivan Hanley & Sullivan, for appellant.
The rule is that the agent who assists his principal in disposing of the property of another intrusted to the principal is not liable for the wrongful conversion of the property by the principal or his participation therein, unless he had knowledge that such act was wrongful or would have had such knowledge but for gross negligence. Leuthold v Fairchild, 35 Minn. 99; Ashcroft v. Tucker, 215 P. 877; Beach v. Turk, 9 Heisk. 708, 24 Am. Rep. 360.
Under the terms of the storage tickets, the Exchange had the right to ship the grain out of the state. Marshall v. Andrews, 8 N.D. 364, 78 N.W. 851; First Nat. Bank v. Minneapolis N. Elevator Co., 11 N.D. 280.
If the ticket holders directly authorized the Exchange to sell the grain, or if by their conduct the ticket holders gave the Exchange ostensible authority to sell the grain, the company is not liable. Neiter v. McCaull Dinsmore Co., 199 N.W. 85.
One who owns or has an interest in personal property, with full knowledge of his rights, suffers another to deal with it as his own by selling or pledging it, or otherwise disposing of it, in such case there can be no doubt that an estoppel exists. Branthover v. Monarch El. Co., 33 N.D. 454, 156 N.W. 972.
And estoppel is fundamentally based upon the idea that "he who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to keep silent." 16 Cyc. 681.
Jacobsen & Murray, for respondents.
A promissory note of a debtor does not operate as an absolute payment of his obligation, unless it was intended so to operate. State v. Royal Indemnity Co., 175 N.W. 625.
The general rule is that the reasons and consideration for an assignment, or the object sought to be attained thereby, will not be inquired into in an action by the assignee, but that the action is properly brought by the assignee as the real party in interest as the assignor has transferred all apparent interest and title in and to the subject matter, although the assignee may be only an agent or trustee, and others may be beneficially interested. 5 C. J. § 199, p. 994.
An assignee may sue in his own name, although by the terms of the assignment he is bound to account to the assignor for the proceeds recovered, or to apply them as directed, or he is otherwise a mere agent or attorney for collection. 5 C. J. § 200.
These actions were brought by the various plaintiffs as owners or assignees of grain storage receipts to recover for the conversion of the grain evidenced thereby. The actions were begun separately. By order of the District Court they were consolidated for trial and tried to the same jury. Separate verdicts were returned and separate judgment entered in each cause. Thereafter, the defendant, McCaull-Dinsmore Company, moved in each case for judgment notwithstanding the verdict or for a new trial. These motions were denied and the defendant thereupon perfected this appeal from each of such orders and from the judgment in each of said actions. The parties stipulated that these appeals be considered and disposed of together. In accordance with such stipulation, the appeals were argued at the same time in this court. The facts in these cases are essentially the same (though there are some minor differences) as in the case of Huether v. McCaull-Dinsmore Co. just decided, 52 N.D. 721, 204 N.W. 614, and which was argued and submitted in this court with the instant cases. In that case, however, a special verdict was returned. In the instant cases, general verdicts were returned, but the jury were required to and did answer special interrogatories which were submitted to them.
On these appeals, the defendant contends that there should be a reversal on the following grounds: (1) That the court was without jurisdiction by reason of affidavits of prejudice filed in each case prior to the commencement of the term of court at which they were tried. (2) On account of error in giving and refusing to give instructions. (3) That the evidence was insufficient to sustain the verdicts returned and the judgments entered. (4) Error by reason of failure to take into account in determining the extent of the liability of the defendant, the grain which was in the possession of the defendant, Equity Exchange, at the time the Exchange became insolvent. (5) Error by reason of failure to take into account the proceeds of the warehouseman's indemnity bond. (6) That the verdicts were excessive. (7) On account of error in the rulings of the court during the course of the trial.
Since the facts in the Huether Case, supra, are the same as those in the instant cases, no detailed statement need here be made, but reference to the statement in the opinion in that case will suffice. It follows that the holding in the former case is determinative of like matters in the instant cases. Consequently, this opinion will be devoted solely to a consideration of the additional question that are here raised. The determination in the former case is conclusive on the third, fourth, fifth, sixth, and seventh grounds above stated, except as hereinafter specially mentioned.
The defendant first contends that the trial court was without jurisdiction for the reason that prior to the commencement of the terms of court at which these cases were tried, affidavits had been filed against the Honorable F. T Lembke, the Judge before whom the cases were tried, under the provisions of chapter 331, Sess. Laws 1923. Reference to the records of this court discloses that affidavits of prejudice were filed in these cases and that such affidavits were transmitted to the clerk of this court as required by § 3 of chapter 331. It further appears, however, that this court returned such affidavits without action thereon for the reasons, We have heretofore held that where there are two or more partie...
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